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"The current law on reverse burdens of proof in the UK is a threat to the right to a fair trial enshrined in the Human Rights Act 1998" - Discuss.
The law recognises two main burdens of proof: the legal and the evidential burden. The legal burden is the obligation on a party to establish certain facts in issue to the required standard. The evidential burden is the obligation on one party to make an issue 'live' by adducing some tangible evidence. In criminal matters, 'no principle in Anglo-American criminal law is more vaunted than the so-called presumption of innocence'. Under this doctrine, the prosecution must produce evidence of guilt and persuade the fact-finder beyond reasonable doubt. This has been termed the 'golden thread' of English justice. However, the 'golden thread' has never been absolute, and in DPP V Woolmington Lord Sankey identified the common law exception of insanity and statutory exceptions as examples where the golden thread becomes frayed. There are now many express and implied statutory examples where the burden of proof is reversed where the defendant must discharge a legal burden to avoid conviction. These provisions have aroused the interest of Europe as potentially violating the right to a fair trial as guaranteed by Art. 6 (2) of the European Convention on Human Rights and Fundamental Freedoms, now enshrined in our domestic law by the Human Rights Act 1998. The Courts have held, that where a legal burden is imposed, it must be legitimate and proportionate. Where it is not proportionate, the offending provision should be 'read down' so as to impose only an evidential burden on the defendant. As we shall explore, the law in this area is often complex and resembles a smorgasbord of often conflicting factors.
A central feature in most common law systems is that a defendant is presumed innocent and the prosecution have the burden of proving the guilt of the accused beyond reasonable doubt. The presumption of innocence is enshrined in the very fabric of English law and was evidenced in early cases such as R v Hobson where the Court held that 'it is a maxim of English law that ten guilty men should escape rather than one innocent man should suffer.' Furthermore, it is up to the prosecution to discharge the legal burden of proof in a criminal trial, by persuading the trier of fact of the defendant's guilt beyond reasonable doubt. This principle was cemented in the case of Woolmington where Viscount Sankey LC held that 'Throughout the web of the English criminal law one golden thread is always seen, that it is the duty of the prosecution to prove the prisoner's guilt' This principle reflects the notion that society is in a much stronger position than the individual and therefore should bear a more onerous burden in proving guilt.
From reading the excerpt from Woolmington, one may assume that the defendant never bears the legal burden proof in any circumstances. This is far from the case. Firstly, it should be noted that Lord Sankey's proclamation in Woolmington itself identified two exceptions to the golden thread. Firstly, the learned judge indicated that the defence of insanity is one such exception. Today, insanity remains the only common law exception to the principle that the prosecution bear the legal burden of proof. This exception was borne out of the advisory opinions of judges in M'Naghten's Case in which the Court held that where a defendant raises the defence of insanity, the defendant is charged with establishing on the balance of probabilities, that at the time of the offence, he was labouring under such a defect or reason, from a disease of the mind, so as not to know the nature of quality of his act. Dennis suggests that there is no valid in reason in principle or in policy why the accused should bear a legal burden of proving insanity as opposed to adducing some evidence i.e. an evidential burden. Indeed, the Criminal Law Revision Committee declared in 1972 that the rule was anomalous and that it should be made an evidential burden only. However, there has been no urgency to implement such a change and in the recent case of R v Foye the Court of Appeal have reaffirmed that it is a legal burden that must be discharged in such cases. This burden further extends to any claims by the defendant that they are unfit to plead.
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Lord Sankey identified a further exception to the golden thread in the form of statutory exceptions. This exception can be further subdivided into express and implied statutory provisions. There are a considerable number of legislative provisions that indicate expressly that the defendant must discharge the legal burden of proof in relation to some fact or issue at point within a case. A comprehensive study by Ashworth and Blake in 1996 concluded that forty per cent of indictable offences involved the defendant discharging a legal burden of proof for some element of the offence. One limitation of this study is that it only considered serious offences, triable on indictment and before the Crown Court. Munday insists that if summary offences before the Magistrates' Court were also included the percentage would be much higher. Therefore, it is fair to conclude that the defendant will on many occasions be compelled to discharge the legal burden of proof. For example, the Homicide Act 1957, s.2 (2) which defines the defence of diminished responsibility, and states that 'On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder'. In R v Dunbar it was held that this express provision placed an onus on the defendant, to prove on the balance of probabilities, that he was suffering from diminished responsibility at the time the offence was committed.
Furthermore, statutes may impliedly reverse the burden of proof. For summary offences, the relevant rule can be found in the Magistrates' Courts Act 1980 s. 101 which provides that where a defendant relies on a defence involving an exemption, exclusion, proviso or excuse, the burden shall be on the defendant. This section is usually invoked in cases involving regulatory legislation although other cases have urged against such a blanket approach and that burdens should be considered on a case-by-case basis. The same approach applies in cases involving indictable offences. The House of Lords in R v Hunt held that where a statute is silent on which party has the burden of proving a fact in issue, the Court can have recourse to public policy considerations including how easy it would be for the defendant to discharge the burden.
We therefore can confidently conclude that the 'golden thread' has never actually been absolute and continues to be weakened in the modern legal climate. The next issue we consider is whether the exceptions to the 'golden rule' represent a threat to human rights norms, namely the presumption of innocence and the right to a fair trial.
All reverse burdens must take into account the presumption of innocence enshrined in Art. 6(2) of the European Convention on Human Rights and Fundamental Freedoms. Art. 6(2) insists that 'Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law'. The inherent problem with reverse onuses is that they appear to fly in the face of this presumption of innocence and thus denies the defendant the right to a fair trial. This problem is exacerbated by the temptation for Parliament to employ reverse burdens as a weapon in the fight against serious crime. The question that falls to be answered is whether it is ever permissible to impose a legal burden upon the defendant, or whether all such burdens are now outlawed as they impinge upon the fundamental principles of the presumption of innocence?
The issue was first heard in the higher courts in this jurisdiction in the case of R v Lambert where the appellant was convicted of possessing a controlled drug with intent to supply. This was in contravention of s. 5 of the Misuse of Drugs Act 1971. The appellant sought to rely on s. 28(3)(b)(i) which established a defence that the accused did not know or suspect that the bag he was carrying contained a proscribed drug. The trial judge concluded that to establish such a defence the defendant must 'prove' that he did not know or suspect the bag contained narcotics and insisted that the accused bore the legal burden of proof. This outcome was unsurprising given that the use of the verb 'prove' is the classic language of express statutory exceptions to the golden thread.
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On appeal, the appellant argued that the trial judge erred in finding that the accused must discharge a legal burden and this was a clear violation of Art. 6(2). The appellant failed to persuade the Court of Appeal and the case proceeded to the House of Lords. The House of Lords dramatically overturned the decisions of both lower courts in a majority decision. The Court held that in light of the enactment of the Human Rights Act 1998, which weaved the Convention principles directly into the domestic law of this jurisdiction, the appellant should be charged with an evidential burden only i.e. adducing some evidence that he did not know or suspect the bag contained narcotics.
In order to achieve this result, the Court utilised s. 3 of the Human Rights Act 1998 to 'read down' the words 'must prove' in s. 28(3)(b)(i) as meaning 'to adduce evidence of'. Once some evidence was proffered by the defendant, it was then the job of the prosecution to disprove this beyond reasonable doubt. The mechanism of reading down did injustice to the presumption that when a word is used in more than one place in a statute, a word will usually bear the same meaning: in this sub-section the verb 'prove' was used to identify the prosecution's legal burden of proof. While this decision was radical in its straining of the meaning of s. 28(3)(b)(i), it should be noted that the Law Lords conceded that not every legal burden, whether express or implied, would necessarily violate Art. 6(2). The raises the difficult question of where we draw the line between acceptable legal burdens and those that violate Art. 6(2)?
In Lambert the Court emphasised that the prosecution always bear the primary obligation of proving the main elements of an offence. After that, the legality of the reverse burden would be assessed in light of all of the circumstances, including the aim of the legislation, the fact that Parliament had intended to pass such a statute, and the ease with which the prosecution could discharge the burden should it be placed on them. Every reverse burden will therefore involve a balancing exercise, involving several factors, to ensure that the burden is proportionate.
However, Lambert itself depicts the unpredictability of this proportionality exercise. If we analyse the judgments of all appellate judges that heard this case, we see that four judges found that s.28(3)(b)(i) was a disproportionate interference while four did not. If we factor in the decision of the trial judge, the majority of judges found no violation! Munday suggests that what lies at the heart of this divergence in opinion, is the 'differing perceptions of the degree to which the state is entitled to deprive defendants of their customary protections in the interests of protecting society against the baneful effects of drug-dealing'. Judges therefore use human rights law as an instrument to override what have 'traditionally been considered quintessentially political decisions'.
This divergence in opinion is plainly evident in Lambert. The majority emphasised that a conviction in the case could attract a sentence of life imprisonment. Calling on several resources including Canadian human rights cases, jurisprudence of the Privy Council and academic opinion from eminent scholars such as Professor Glanville Williams, the majority noted a trend towards not placing a legal burden on the defendant too lightly. The majority cautioned against imposing a legal burden as it would allow an accused to be convicted where the jury might well believe he was innocent but had not persuaded them that he probably did not know the nature of what he possessed. However, Lord Hutton, in a powerful dissent, emphatically disagreed with the majority. Lord Hutton emphasised the ease with which the defendant could discharge an evidential burden, by adducing evidence in his statement or through evidence of a third party. This would then lead to the prosecution having to destroy the defence by leaving no reasonable doubt in the mind of the jurors that he knew he was in possession of a controlled drug. The judge urged that the threat of drugs to the wellbeing of the community justified a legal burden in this case.
After Lambert it was feared that Courts would 'read down' all legal burden as being evidential only, especially in situations involving serious crimes which attracted heavy punishments. However, in R v Johnstone the House of Lords sought to refine Lambert by adopting a more non-interventionist approach. Lord Nicholls opined that in reverse burden cases, the Courts enjoy a mere power of review, and should only differ from the intention of Parliament when it is clear that Parliament has failed to give sufficient important to the presumption of innocence. Lord Nicholls further added that the approach of the courts should be coloured by an appreciation that 'if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused'.
In Attorney General's Reference (No 1 of 2004) the Court preferred the approach in Johnstone over Lambert and held that the former was the last word on the subject and the citation of other authorities should be discouraged. This conclusion was helped by the fact that the comments in Lambert on this subject were essentially obiter, as the Court in that case had held that the Human Rights Act 1998 did not act retrospectively. However, in the case of Sheldrake v DPP the Court held that Lambert should not be ignored and that it was perfectly compatible with Johnstone. Lord Bingham suggested that the differences in emphasis in the case 'are explicable by the difference in subject matter of the two cases'. However, in practice it may be difficult for counsel not to prefer one authority over the other when justifying when a legal burden is justified or otherwise.
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Lord Bingham in Sheldrake outlined the general philosophy in reverse burden cases, concluding that the overriding concern should be that the trial is fair and the presumption of innocence maintained. He further concluded that the imposition of any reverse burden should be fair and proportionate, taking into account various factors including the seriousness of the offence and the maximum sentence, the ease of proof by one party over the other and the danger of convicting the innocent. In an attempt to provide clarity in this area, Dennis has helpfully sought to draw the authorities together and sketch out the law as it currently stands:
A reverse burden of proof is held to be justified as pursuing a legitimate aim, the Court must then consider whether such an interference is proportionate. To be proportionate, the law 'requires a balance to be struck between the general interest of the community and the fundamental protection of the rights of the individual'. The court will balance a number of factors in assessing this question, including (i) appropriate deference to the will of Parliament (ii) whether the crime is truly criminal or regulatory (iii) the nature of the penalty (iv) the ease with which the defendant can discharge the legal burden (v) the desirability of the prosecution proving the essential elements of the offence and (vi) the significance of the presumption of innocence as a general procedural safeguard. Finally, if the provision is not proportionate, then the court will assess whether it can be 'read down' as imposing an evidential burden. If it cannot be read down, then a declaration of incompatibility will be made under s. 4 of the Human Rights Act 1998.
However, the authorities have been criticised as not providing clear enough guidance on how to interpret statues that impose a reverse burden. The factors identified in Sheldrake above are indicative at best, but do not provide conclusive guidance. It is therefore wholly understandable that the proportionality exercise has been described as an 'imprecise science' that involves balancing the egregiousness of the evil posed against society and the rights of the accused. Dennis concedes that it is difficult to discern any pattern within the case law on the relative importance of each factor, with the author indicating that 'the justifiability of particular reverse onuses will resemble a forensic lottery'. For example, in Johnstone a potential ten year maximum penalty did not prevent a legal burden being upheld in this case. The criminal/regulatory distinction is also ripe for challenge. Legal reverse burdens for 'quasi-criminal' offences tend to be upheld as compliant with Art 6(2). These offences do not tend to involve custodial sentences or involve any social stigma. However, it is submitted that this regulatory category is not particularly robust and is likely to be challenged, as some quasi-criminal offences increasingly carry moral disapproval and the real possibility of a custodial sentence.
The 'golden thread' has never been absolute. There have always been exceptions including the defence of insanity and statutory exceptions. Reverse burdens are now to be construed against the rights protections afforded by human rights legislation. The law as it stands is to be commended from a rights-based perspective, in that the mechanism of 'reading down' will help to cement the rights of the accused by reducing legal burden to evidential burdens. However, the law in this area, particularly in assessing whether a reverse burden is proportionate, remains in 'a real state of flux and it seems that until the courts have ruled upon each area where this is an issue, absolute certainty will not be achieved.'
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Table of Statutes and Cases
Homicide Act 1957, c. 11
Human Rights Act 1998, c. 42
Magistrates' Courts Act 1980, c. 43
Misuse of Drugs Act 1971, c.38
Attorney General's Reference (No 1 of 2004)  1 WLR 2111
Environmental Agency v M E Foley Contractors Ltd  1 WLR 1754
Gatland v Metropolitan Police Commissioner  2 QB 279
Hounslow LBC v Thomas Water Utilities Ltd  QB 212
M'Naghten's Case (1843) 10 Cl & Fin 200
R v Dunbar  1 QB 1
R v Edwards  QB 27
R v Foye  EWCA Crim 475
R v Hobson (1823) 1 Lew CC 261
R v Hunt  AC 352
R v Johnstone  UKHL 28
R v Lambert  UKHL 37
R v Podola  1 QB 325
R v Vasquez  1 WLR 1304
Sheldrake v DPP  1 AC 264
R v Williams (Orette)  EWCA Crim 2162
Woolmington v DPP  AC 462
Dennis I, Law of Evidence (5th edn, Sweet and Maxwell 2013)
Doak J and McGourlay C, Evidence in Context (3rd edn, Routledge 2012)
Durston G, Evidence: Text and Materials (2nd edn, OUP 2011)
Fitzjames Stephen J, History of the Criminal Law (Blackstone, 1883)
Munday R, Evidence Core Text (7th edn, OUP 2013)
Ashworth A and Blake M, 'The Presumption of Innocence in English Criminal Law'  Criminal Law Review 306
Cooper S, 'Human Rights and the Legal Burden of Proof' (2003) 3 Web JCLI
Dennis I, 'Reverse Onuses and the Presumption of Innocence: In Search of Principle'  Criminal Law Review 901
Smith B, 'The Presumption of Innocence and the English Law of Theft: 1750-1850 (2005) 23 Law and History Review 133
Tadros V and Tierney S, 'The Presumption of Innocence and the Human Rights Act' (2004) 67
Modern Law Review 302
Williams G, 'The Logic of Exceptions'  Criminal Law Journal 261
Other Published Sources
Criminal Law Revision Committee, Eleventh Report: Evidence (General) (Cmd 4991, London 1972)
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